Because defendant was convicted by a jury, we state the facts in the light
most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007), cert
den, 128 S Ct 906 (2008). At the center of this case is a 1975 Chevy Camaro. In early
2001, the car was registered to defendant but was being driven by her husband, Dubois.
In May 2001, defendant discovered that Dubois was having an affair with her friend,
Howe. Defendant obtained a restraining order against Dubois that prevented him from
going near defendant and her property, including the Camaro. On May 15, 2001, after an
altercation with defendant, Dubois drove the Camaro to Howe's address. The following
day, Dubois was arrested, but the Camaro disappeared. Defendant reported to police that
the car had been stolen.

On July 25, 2001, Dubois and Howe took the car to the Department of
Transportation, Driver and Motor Vehicle Services Division (DMV), and attempted to
register the Camaro in Howe's name. They presented a title to the Camaro that contained
defendant's signature releasing her interest in it. Nonetheless, because the car had been
previously reported stolen, DMV notified the police department and delayed transferring
title to Howe pending the investigation.

As part of the investigation, a police officer contacted defendant about the
Camaro. Defendant denied that she had ever signed a document transferring title to the
car. Rather, defendant told the officer that her signature was forged. The police officer
concluded that the dispute over ownership of the car was essentially civil in nature and
was best resolved through civil rather than criminal proceedings.

In the meantime, Dubois was sentenced to prison for charges stemming
from his earlier arrest, and he left the car with Howe. Dubois and Howe then
corresponded from prison regarding the fate of the Camaro. Howe suggested that the
Camaro be given to her mother, O'Neal, to whom Dubois and Howe owed rent. Dubois,
however, sought the assistance of his friend Zanotto, and asked her to take his belongings,
including the Camaro, to his own mother's home instead.

Howe did not approve of the plan to drive the Camaro to Dubois's mother's
house, and she refused to cooperate with Zanotto. At that point, Zanotto went to DMV
and determined that defendant was the registered owner of the vehicle because the title
transfer processing had been delayed by defendant's earlier report that the car was stolen.
Zanotto then contacted defendant, and the two of them agreed to retrieve the car from
Howe based on the fact that it was registered in defendant's name. Defendant and
Zanotto then went to the police station and persuaded the police to assist them in
retrieving the Camaro, based on defendant's representation that she was the registered
owner of the car.

Zanotto and defendant drove to Howe's property on October 31, 2001, to
take possession of the Camaro; they were accompanied by a police officer. When they
arrived at Howe's property, Zanotto and the officer approached Howe. Defendant
remained at the edge of the property because, by all accounts, she was not welcome on
Howe's property. In fact, according to defendant, Howe had previously "sicced her
Rottweilers on" defendant.

When Zanotto told Howe that she was taking the Camaro, Howe and
O'Neal, who was also present, both "threw a fit in the driveway," including "screaming
and throwing papers around[.]" The officer then proposed that the car be stored at
Zanotto's house while the issue of ownership was resolved; Zanotto represented to Howe
that she would not charge a fee for the storage. Believing that she had no choice in the
matter, Howe allowed Zanotto to drive the Camaro to her house for storage, pending the
resolution of defendant's claim of ownership.

From her vantage point, defendant did not hear the conversation that
occurred between Zanotto, Howe, and the officer, but she watched Zanotto drive the
Camaro off of Howe's property. Defendant then left in Zanotto's car. Once they had
driven a few blocks away from Howe's property, defendant and Zanotto switched cars,
and defendant drove the Camaro to Zanotto's house. The unauthorized use of a vehicle
charge against defendant is based on that use of the Camaro.

Sometime thereafter--and despite her assurance to Howe that there would
be no fee for holding the Camaro--Zanotto entered into an agreement with defendant to
store the car for $75 per month. The November 3, 2001, written agreement made specific
reference to the possibility of a lien on the Camaro: "If for any reason payments are not
made we also agree that a lien for storage fees will be filed on vehicle and all fees must
be paid in full."

In her first assignment of error, defendant argues that the trial court erred in
denying her motion for a judgment of acquittal on the count of unauthorized use of a
vehicle. That count alleged that "defendant on or about the 31st day of October, 2001, in
Klamath County, Oregon, did unlawfully and knowingly take a vehicle, to-wit: a 1975
Chevrolet Camaro * * * without the consent of the owner, [Howe] and/or [O'Neal] * * *."
See ORS 164.135(1)(a) (A person commits the crime of unauthorized use of a vehicle
when "[t]he person takes, operates, exercises control over, rides in or otherwise uses
another's vehicle, boat or aircraft without consent of the owner[.]").

At the close of the state's case, Zanotto, who also had been charged with
the same count of unauthorized use of a vehicle, moved for a judgment of acquittal.
Zanotto argued that her own use of the vehicle was, in fact, with the consent of the owner
because (1) as of October 31, 2001, defendant--not Howe or O'Neal–was the registered
owner of the car, and (2) a police officer directed Zanotto to take custody of the vehicle at
that time. Defendant then joined in that motion, arguing that, "by [Howe] and/or [O'Neal]
allowing it to be moved and stored, it is not an unauthorized use regardless of whether the
police officer said they could use it." In short, defendant argued that Howe had consented
to the storage of the Camaro and that the fact that the consent was obtained through
deception was irrelevant.

The problem with defendant's argument, as the state correctly points out, is
that it ignores the competing inferences that were available on this record regarding the
scope of Howe's assent and defendant's mental state. See State v. Krummacher, 269 Or
125, 138, 523 P2d 1009 (1974) (in reviewing a motion for a judgment of acquittal, the
court determines "whether the inferences that may be drawn from [the disputed and
undisputed facts] are sufficient to allow the jury to find defendant's guilt beyond a
reasonable doubt"). That is, even assuming that Howe assented to Zanotto moving and
storing the car, such assent does not, as a matter of law, extend to defendant's use of the
car.

Viewed in the light most favorable to the state, the evidence at trial
established that: (1) defendant knew that Howe was the rightful owner of the Camaro on
October 31, 2001; (2) the relationship between Howe and defendant was so poor that
defendant was not even allowed on Howe's property at that time; (3) Howe believed that
she, and not defendant, was the owner of the Camaro and refused to acknowledge
defendant's rights to the Camaro; (4) Howe allowed Zanotto to drive the Camaro to her
house for storage only after being directed to do so by the police officer; and (5)
defendant drove Zanotto's car away from Howe's property and did not drive the Camaro
until they were a few blocks away from Howe.

From those facts, the jury reasonably could have inferred that defendant
knew, as of the time that she arrived at Howe's property, that she was not authorized to
drive Howe's Camaro; that she knew that Howe consented to Zanotto driving the Camaro
for the limited purpose of storing it at Zanotto's house while the ownership issue was
resolved; that, given the history between Howe and defendant (including the Rottweilers
incident and competition for the affection of Dubois), defendant knew that Howe most
likely would not have consented to defendant driving the Camaro for any purpose; and
that defendant and Zanotto created the impression in Howe's mind that Zanotto--not
defendant--would be driving the Camaro, and switched cars only when out of Howe's
sight.

Under those circumstances, the fact that Howe allowed Zanotto to drive the
Camaro does not mean, as a matter of law, that defendant also had consent to drive the
vehicle or reasonably believed that she had such consent. Rather, Howe's intent in that
regard and defendant's state of mind at the time she drove the Camaro were matters for
the jury to decide. And, on this record, the jury reasonably could have found, based on
the facts and reasonable inferences available from those facts, that defendant knowingly
drove the Camaro on October 31, 2001, without Howe's consent.

Defendant also renews her argument that, because the Camaro was still
registered in her name on October 31, 2001, she was the "owner" of the car and therefore
could not have driven the car without the consent of the owner. "Ownership" of a
vehicle, for purposes of the crime of UUV, however, is not determined solely based on
DMV registration records. Although those records may constitute prima facie evidence
of ownership, see, e.g., State v. Dollar, 181 Or App 354, 358, 45 P3d 1014 (2002), the
state presented ample evidence from which the jury could have found that defendant
intended to transfer ownership of the Camaro prior to October 31, 2001, and that she
knew that her subsequent claim of ownership was both fraudulent and illegitimate.

In her second assignment of error, defendant argues that the trial court erred
in denying her motion for a judgment of acquittal on the charge of conspiracy to commit
theft. Defendant argues that "the evidence is insufficient to establish the required meeting
of the minds, [and] defendant's motion for judgment of acquittal should have been
granted." More specifically, defendant acknowledges that the state presented evidence
that defendant and Zanotto agreed to take the car away from the victim but argues that
"that agreement alone cannot establish a criminal conspiracy unless the state established
that defendant and codefendant understood and agreed that the taking of the car would be
a crime." In response, the state contends that the "meeting of the minds" issue is raised
for the first time on appeal and is therefore not preserved for our review. We agree with
the state.

As was the case with the UUV charge, Zanotto was charged with the same
count of conspiracy to commit theft as defendant and made a motion for a judgment of
acquittal on that count. In support of that motion, Zanotto argued that "the title to the
vehicle, the registered title to the vehicle at the time as alleged in the criminal conspiracy
count was [defendant's;] therefore, the state has failed in its proof." Defendant then
joined in that motion and argued, additionally, that, although the state was emphasizing
defendant's "unclean hands," the state "hasn't even charged theft by deception. Theft by
deception is a completely different issue than theft by taking." Defendant continued:

"[A]s far as the criminal conspiracy, it is theft by taking. And the only theft
alleged in the entire complaint is on May 10, 2002. There is no other theft
charged in 2001 so how are we going to have a conspiracy to commit a theft
when there is no theft charge to either party, either defendant. * * * The
pleading is not there to get where [the state] wants to be."

Thus, neither Zanotto nor defendant argued below, as defendant does on
appeal, that the state "failed to establish that both of the parties to the 'conspiracy' were
operating under a belief that they were committing a crime at any given time during the
relevant period[.]" (Emphasis defendant's.) Rather, they argued (1) that the state's proof
concerned theft by deception but the indictment alleged theft by taking and (2) that no
theft by taking had been committed in the fall of 2001, because defendant was the
registered owner of the Camaro. In sum, defendant's argument below did not alert the
trial court to the proof issue regarding the "meeting of the minds" that defendant now
raises on appeal, and we decline to address the second assignment of error for that reason.
See State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) ("[A] party must provide the trial
court with an explanation of his or her objection that is specific enough to ensure that the
court can identify its alleged error with enough clarity to permit it to consider and correct
the error immediately, if correction is warranted."); see also State v. Paragon, 195 Or
App 265, 268, 97 P3d 691 (2004) ("A motion for judgment of acquittal does not
automatically encompass a challenge to the sufficiency of the evidence. The motion must
state the specific theory on which the state's proof was insufficient.").

C. Third Assignment of Error

In her third assignment or error, defendant contends that "[t]the trial court
erred in denying [her] motion to require the state to elect its theory on [the conspiracy
charge]." Defendant made her "motion to require the state to elect" during the course of
her own testimony. Defendant's counsel had, in framing a question to defendant, stated
that she was "charged with criminal conspiracy for intentionally acting in a manner
agreeing with, I guess [Zanotto], to steal the vehicle, I guess, on October 31, 2001." The
prosecutor objected, on the ground that defendant's counsel was "improperly forming the
charge. There is no October 31st in [the conspiracy count]. That is not a date that has
been specified." The prosecutor then explained:

"[T]here was an agreement in the fall of 2001 that this car was going to be
taken. Whether it was the bogus lien that was put together or the agreement
that the Defendant just spoke of about, let's go get the car. They agreed.
There was a moment there when they agreed."

Defendant, in response, "move[d] the Court to have the State elect which theory they are
moving on so that we can address its theory." The court denied the motion.

On appeal, defendant argues that, by denying her motion, the trial court
created a jury concurrence problem. In effect, defendant argues that the trial court either
should have required the state to elect or instructed the jury that, in order to convict
defendant of conspiracy to commit theft, 10 of its members must agree on the same theory
of conspiracy--the competing theories being (1) that defendant and Zanotto agreed to take
the car from Howe on October 31, 2001, based on the fraudulent premise that defendant
was the owner; or (2) that they agreed to take the car from Howe by foreclosing on a
phony lien. In defendant's view, her motion to require the state to elect was adequate to
alert the trial court to the jury concurrence issue and therefore preserved that issue for
appeal; alternatively, defendant argues that the trial court's failure to instruct the jury on
the concurrence issue constitutes error apparent on the face of the record.

In response, the state contends that "the nub of [defendant's] argument is
that the trial court committed plain error in failing to instruct the jury that, before it could
convict defendant of conspiracy, it had to agree on at least one of the foregoing factual
theories for when the alleged agreement occurred." The state proceeds to argue only that
any error in failing to so instruct the jury is not apparent on the face of the record.

Initially, we conclude that defendant preserved only the issue whether the
trial court erred in denying her motion to require the state to elect. At the time that
defendant made the motion, the state had adduced evidence that supported both of the
state's theories as to what defendant and Zanotto agreed to do and when they reached that
agreement. There is no indication that defendant was prejudiced in her ability to defend
against the charges based on the state's refusal to elect, or that the state's two theories
were mutually exclusive. Accordingly, nothing prohibited the state from arguing both
theories to the jury, and the trial court did not err in denying the motion to require the
state to elect a particular theory to support the conspiracy charge. SeeState v. Reyes, 209
Or 595, 622, 308 P2d 182 (1957) (discussing case law to the effect that, "where the
evidence discloses, or it appears likely that it will disclose, several crimes, proof of any
one of which supports the charge, the court may in its discretion compel an election by
the prosecutor of the specific offense, upon proof of which he intends to rely when it
appears that if the application is denied the defendant will be prejudiced or that he will
be prevented from properly making his defense") (emphasis added)).

A motion to require the state to elect is often related to--and, in fact, can
obviate--the need for a jury concurrence instruction. See, e.g., State v. Randolph, 123 Or
App 566, 568, 860 P2d 873 (1993), revden, 318 Or 382 (1994) (state's election of
conduct that occurred on a particular date was sufficient to ensure jury concurrence where
trial court instructed the jury regarding the election). However, a motion to require the
state to elect is often made (as in this case) well before all of the evidence has come in
and well before the trial court considers what jury instructions are appropriate. Moreover,
the trial court's ruling on a motion to require the state to elect often involves different
considerations from jury concurrence, such as whether the defendant was adequately
apprised of the charges and able to mount a defense to those charges. In fact, defendant
here couched her motion in terms of her need to "address [the state's] theory" and not in
terms of a jury concurrence problem. For those reasons, we conclude that defendant's
motion to require the state to elect a theory--a motion made when defendant was
attempting to offer testimony in her own defense--was not adequate to preserve any claim
of error with respect to the jury instructions that were given later in the case. See Roop v.
Parker Northwest Paving Co., 194 Or App 219, 249, 94 P3d 885 (2004), rev den, 338 Or
374 (2005) (under ORCP 59 H, error in failing to give a particular jury instruction is not
preserved unless the instruction has been requested); ORS 136.330(2) (providing that
ORCP 59 H "applies to and regulates exceptions in criminal actions").

We proceed, then, to consider whether to review the claimed instructional
error as error apparent on the face of the record, ORAP 5.45(1).(6) An error is
apparent on the face of the record for purposes of ORAP 5.45 if (1) the error is one of
law, (2) the legal point is obvious, that is, not reasonably in dispute, and (3) to reach the
error, "[w]e need not go outside the record or choose between competing inferences to
find it[.]" State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). The question before us
in this case is one of law and does not require us to go beyond the record. See
State v. Lotches, 331 Or 455, 472, 17 P3d 1045 (2000), cert den, 534 US 833 (2001) (In the
context of plain error review for failure to give a jury concurrence instruction, "[t]he first
and third elements are not really at issue; the question of what must be included in a jury
instruction is a question of law, and what was or was not included is determined readily
by examining the instructions that were given. Therefore, the only issue is whether the
errors were 'obvious.'"); accordState v. Hale, 335 Or 612, 627, 75 P3d 448 (2003), certden, 541 US 942 (2004) (applying that principle and concluding that the failure to give a
jury concurrence instruction was error apparent on the face of the record). Accordingly,
in light of Lotches and Hale, the focus of the parties' dispute is whether the legal point--i.e., that the trial court should have instructed the jury that 10 of its members must agree
on the state's theory of conspiracy--is "not reasonably in dispute."

On this record, however, we need not resolve that issue. Even assuming
that the trial court committed error apparent on the face of the record, the question
remains whether this court should exercise its discretion to correct the error, keeping in
mind that our discretion should be exercised only "with utmost caution." State v. Fults,
343 Or 515, 522, 173 P3d 822 (2007) (quoting Ailes v. Portland Meadows, Inc., 312 Or
376, 382, 823 P2d 956 (1991)). In determining whether to exercise our discretion, we
consider

"the competing interests of the parties; the nature of the case; the gravity of
the error; the ends of justice in the particular case; how the error came to the
court's attention; and whether the policies behind the general rule requiring
preservation of error have been served in the case in another way, i.e.,
whether the trial court was, in some manner, presented with both sides of
the issue and given an opportunity to correct any error."

Ailes, 312 Or at 382 n 6 (citations omitted). In Fults, 343 Or at 523, the court listed
several additional considerations, including whether there was a "possibility that [a]
defendant made a strategic choice not to object" to the error.

Here, we find two related considerations to weigh most heavily in
determining whether to exercise our discretion. First, although the claimed instructional
error was not brought to the trial court's attention, defendant did make a related motion to
require the state to elect a theory on its conspiracy charge. Thus, the trial court was
presented, at least in some manner, with the fact that the state was offering two different
theories in support of its conspiracy charge. That, of course, weighs in favor of
exercising our discretion.

On this record, however, that same fact--that defendant moved to require
the state to elect--also cuts against our exercise of discretion. That is, defendant certainly
was aware of the potential concurrence problem but nonetheless did not seek a jury
concurrence instruction.

In light of defendant's inexplicable failure to address the jury concurrence
issue at the end of the trial, we conclude that there is a distinct possibility that defendant
made a strategic decision not to request that instruction. The presentation of the evidence
at trial was, quite frankly, confusing as to what various parties knew and when they knew
it. Defendant, for example, maintained throughout trial that she had never signed the title
relinquishing her interest in the Camaro--contrary to her earlier admission and the
testimony of a handwriting expert. And, in his closing argument, defendant's counsel
continued to argue that defendant believed that she had a valid right to possess the car on
October 31, 2001, and November 3, 2001 (the date of the storage agreement). Zanotto,
on the other hand, argued that she had no knowledge that defendant had relinquished her
interest by October 31, 2001, and that there was nothing "bogus" at all about the lien
agreement--defendant was the registered owner and the lien was valid. The prosecutor,
for his part, went back and forth as to what the parties agreed to do and, in closing
argument, essentially conceded that Zanotto may not have had the requisite criminal
intent to form a conspiracy on October 31, 2001.

Given the state of the evidence, defendant and Zanotto may have decided
that the confused factual record and the ambiguity concerning the state's theory of
conspiracy provided their best chance that a jury would find reasonable doubt. In fact,
defendant's counsel argued to the jury:

"[Y]ou are going to have to sort all of this out. It is your responsibility to
determine who is credible, who is not credible, what the agendas of these
individuals are and to make an ultimate determination. At this point, what
[defendant] did and what [Zanotto] did are two different things. You have
to take them independent of each other and you have to come up with the
decision."

Based on the theories that defendant and Zanotto pursued at trial--i.e., that
they both believed, throughout the fall of 2001, that defendant was the actual owner of the
Camaro and had no fraudulent intent concerning the lien arrangement--a jury instruction
that focused the jurors' attention on the facts surrounding the different agreements would
not necessarily have been helpful to their cause. With regard to the October 31, 2001,
agreement, the evidence was overwhelming that defendant lied about her interest in the
vehicle on that date; with regard to the storage arrangement, the evidence strongly
suggested that Zanotto lied about her intent. Defendant and Zanotto may have decided
that, rather than focus the jury on either one of their respective mental states on a
particular date, they were better off leaving the jury with a more impressionistic sense of
their credibility and their intentions regarding the Camaro.

On balance, given the inherently strategic considerations involved in
requesting jury instructions and the fact that defendant in this case was seemingly aware
of a potential concurrence problem but did not request an instruction that addressed that
issue, we will not exercise our discretion to correct any possible trial court error in failing
to sua sponte instruct the jury.

D. Fourth Assignment of Error

In her fourth assignment of error, defendant argues that the trial court erred
in imposing $2,000 in restitution for the loss of the Camaro. Defendant contends that, as
a result of a "procedural oddity," defendant was a party to a small claims action filed by
Howe and O'Neal regarding the Camaro before defendant was sentenced for her crimes.
Defendant contends that she was "completely exonerated" in the small claims action and
that the restitution award therefore "violated the principles of both res judicata and
collateral estoppel that are applicable to criminal cases." (Emphasis defendant's.)

Defendant also contends that, under Blakely v. Washington, 542 US 296,
124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S
Ct 2348, 147 L Ed 2d 435 (2000), the court erred in ordering her to pay restitution based
on facts that she did not admit and that were not found by a jury. Defendant concedes
that she did not raise that issue below but asks us to review it as error apparent on the face
of the record. This court, however, has previously held that imposition of restitution
based on facts not found by a jury or admitted by a defendant is not error apparent on the
face of the record. State v. Travalini, 215 Or App 226, 234, 168 P3d 1159, rev den, 344
Or 110 (2008).

Affirmed.

1.At trial, however, defendant once again denied that it was her signature.

2.At the time that the Camaro went missing in May 2002, Howe had not formally
transferred title to O'Neal. Ironically, in December 2002, after the Camaro was missing, O'Neal
used the statutory lien foreclosure process against Zanotto and Howe to obtain title to the car--the
same process by which she lost the Camaro to Zanotto.

4.Defendant also argues that the evidence is insufficient to establish that defendant--as opposed to Zanotto--"took" the vehicle from Howe on October 31, 2001. It is not apparent
from defendant's brief, nor from our review of the portions of the transcript concerning the
motion for a judgment of acquittal, that defendant raised that issue in any respect in the trial
court. Accordingly, we do not address it on appeal.

5.Defendant also argues, based on the consent that was given to Zanotto, that
Zanotto was a lawful bailee of the Camaro and that "defendant had every reason to assume that
[Zanotto] had authority to provide defendant the consent to drive the vehicle within the scope of
the bailment." Apart from the fact that defendant did not make that argument below, and
assuming for the sake of argument that Zanotto was a lawful bailee, defendant's argument
founders on the factual premise that defendant "had every reason to believe" that Zanotto had
authority to consent to defendant driving the vehicle. As discussed above, there are competing
factual inferences regarding the scope of any alleged bailment--one of which is that Howe's
consent (or "bailment") did not extend to defendant's use of the vehicle.

6.Although defendant seems to assign error only to the denial of the motion to elect,
it is apparent from the argument in support of that assignment that defendant challenges the trial
court's failure to instruct the jury regarding concurrence as error apparent on the face of the
record. That, too, is the subject of the state's response to the assignment of error. Accordingly,
we elect to review that alleged error as well, despite the fact that it is not the subject of a separate
assignment of error. See ORAP 5.45(2) (requiring that each assignment of error be separately
stated).

7.As part of her fourth assignment of error, defendant raises an additional issue as to
whether the value of the Camaro constituted "pecuniary damages" for which restitution was
permissible. That issue was not raised below, and we will not address it for the first time on
appeal.